Wilson & Ors v  Ber-L Fashions Ltd  (Unfair Dismissal/Holiday Pay/Overtime/Notice Pay)  (27 October 2003)
THE INDUSTRIAL TRIBUNALS

CASE REFS:	1483/02
1484/02
1485/02
1486/02

APPLICANTS:		Diane Wilson
				June Butler
				Mary Hopkins
				Eleanor McAllister

RESPONDENT:		Ber-L Fashions Limited

DECISION
The unanimous decision of the tribunal is that it finds that the applicants, Diane Wilson, June Butler and Eleanor McAllister were unfairly dismissed.  The respondent is ordered to pay the sums to them set out in the body of the decision by way of compensation for unfair dismissal.  The tribunal found that Mary Hopkins was barred from claiming the remedy of unfair dismissal due to her age.

The tribunal unanimously finds that the applicants’ claims for holiday pay were not well-founded and are hereby dismissed.  The tribunal found that the applicant, Diane Wilson’s claim for unpaid overtime and for pay in lieu of notice were well-founded and declares that this applicant is entitled to received £33.17 from the respondent in respect of the overtime and £287.00 by way of notice payment, calculated as set out in the body of the decision.  The tribunal finds that the applicant, June Butler’s claims for deduction from wages for overtime and for pay in lieu of notice are all well-founded and declares that she is entitled to receive a payment of £36.00 in respect of a deduction from her last week’s wages, £36.00 for overtime worked but not paid and £140.00 for one week’s net pay in lieu of notice.  The tribunal found that the applicant, Mary Hopkins’ claim for pay in lieu of notice was well-founded and declares that she is entitled to receive a payment of £1,722.00 in respect of twelve weeks’ notice.  The tribunal finds that the applicant, Eleanor McAllister’s claims for pay in lieu of notice were well-founded and that she is entitled to receive a payment in the sum of £1,032.00 in respect of eight weeks’ notice. 
Appearances:
The first, second and fourth-named applicants were represented by Mr John O’Neill, of Thompsons McClure, Solicitors.
The third-named applicant, Mrs Mary Hopkins, appeared in person and represented herself.
The respondent did not appear and did not instruct any representation therefore the respondent’s Notices of Appearance were considered pursuant to Regulation 9(3) of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 1996.

Summary Reasons

The tribunal found the following facts as being applicable to the cases of the four applicants.  Matters of remedy are dealt with under the numbered and headed paragraphs referring to each applicant.

1.	The applicants were all employed by the respondent for the periods of years and at the levels of remuneration set out in the individual paragraphs relating to remedy for each applicant.

2.	The respondent was in fact a Limited Company and accordingly the tribunal finds that the proper title of the respondent to the Originating Applications is Ber-L Fashions Limited as the company’s Certificate of Incorporation and Declaration of Compliance with the requirements of the Companies Acts (Northern Ireland) 1960 and 1978 on application for registration of a company were produced in evidence to the tribunal.

3.	The applicant, Mrs June Butler, was the supervisor of the workforce and she had been alerted to the fact some 48 hours before 10 June 2002, that there was going to be a difficulty paying the wages of the applicants (and indeed the rest of the workforce) in the following working week.  Mrs Butler urged the owner of the company, Elizabeth Millar, to tell the workforce to save with consultation an alternative method of proceeding to be worked out.  The tribunal finds that Ms Millar gave the information to the workforce very reluctantly and only after a great deal of persuasion by Mrs Butler.  Eventually on 10 June 2002 she informed the workforce that she ‘could not guarantee payment’ for that week’s work.  The applicants asked for a letter to present to the Unemployment Benefits Office to confirm their position.  One letter, dated 10 June 2002, confirmed that as a result of the cashflow problems the respondent was unable to guarantee wages and ‘due to this we have no alternative but to pay off Diane Wilson and terminate her contract’.  All the applicants confirmed that they had received a letter in precisely the same terms as the sample letter produced to the tribunal.  

4.	On the basis of this letter the tribunal finds that all the applicants had their contract of employment terminated by the respondent on 10 June 2002.  The tribunal finds that the reason for this was redundancy.  It was clear that there was a major problem with the cashflow of the business.  The tribunal finds that there were also difficulties in fulfilling orders due to difficulties with a cutter who was cutting wrong sizes.  The reality of the situation was that a workforce of in and around 10 to 11 persons on or before 10 June 2002 dropped to 4 to 5 persons thereafter.  From the evidence of certain of the applicants, the tribunal finds that the respondent brought back one of the workforce and filled other positions from other businesses of the respondent directors.  The respondent company continued to trade until December 2002 and thereafter it appears to have simply closed, although there was nothing in the evidence to suggest to the tribunal to the date of hearing that it had been put into liquidation.  The tribunal finds that the applicants’ situation falls squarely within Article 174(1)(b)(ii) in that the requirements of the respondent business for employees to carry out work of a particular kind in the place where the employee was employed have ceased or diminished.

5.	The tribunal finds that the manner in which the dismissal of the employees took place was unfair.  It was not a case in which any one employee was unfairly selected for redundancy as it appeared that the entire workforce was made redundant at a stroke.  However the tribunal found that there was definitely no consultation with the employees.  The tribunal has found that there was no warning given of the impending situation.  The tribunal finds that when the applicants approached the respondent to try and hammer out an alternative method of proceeding, for example by way of working for half salary, the respondent Managing Director simply laughed at their efforts.  There was certainly no attempt to seek alternative employment for any of the applicants and in general the tribunal finds that in the case of this redundancy, this employer has not acted reasonably as a result of the failure to warn the employees and to consult with them.  Furthermore there were no steps taken reasonable or otherwise to minimise the redundancy situation by redeployment within the organisation of the respondent.  While the respondent company appeared to be free-standing, it seemed that some of the Directors of the company had other businesses from which they later drafted in employees to keep the business of the respondent company in operation after the date of redundancy.  

6.	The tribunal found that the applicants were entitled to receive the amounts of compensation set out in the individual sections of this decision relating to remedy. 

(a)	Diane Wilson

This applicant had two completed years of service.  At the time of termination of her employment she was 27 years of age.  These facts attract a multiplier of two and her basic award is computed as follows:-

	£143.50 x 2  =  £287.00

The applicant was successful in mitigating her loss and obtained a job after six weeks for which she had no continuing future loss.  Accordingly the tribunal finds that she entitled to compensatory award computed as follows:-

	Immediate loss period from 10 June to 28 July 2003 (6 weeks) 
	6 x £129.00 (being the applicant’s net weekly wage)  =  £774.00

The tribunal also finds that the applicant is entitled to receive £200.00 in respect of her loss of statutory industrial rights.  

Summary of unfair dismissal compensation

Basic award 						=		£   287.00

Compensatory award					=		£   774.00

Loss of statutory rights				=		£   200.00

Total compensation for unfair dismissal		=		£1,261.00

The applicant also claimed that she was entitled to receive payment in lieu of notice and a payment in lieu of overtime and payment for overtime worked but not remunerated.  Accordingly the tribunal finds that the applicant’s net hourly wage was £3.68 per hour.  For overtime the applicants were all remunerated at the rate of time and a half, making the net hourly wage for overtime purposes £5.52 in respect of this applicant.  Accordingly the applicant is entitled to receive the sum of £33.12 for the six hours overtime.

The applicant also is entitled to receive two weeks pay in lieu of notice in the sum of £258.00.

(b)	June Butler

This applicant very honestly stated to the tribunal that she did not have two full completed years of service with the respondent although she had worked on an as and when required basis with the company from September 1983.  This applicant’s weekly gross wage was £157.00.  Her age at the date of dismissal was 44 and these facts attract a multiplier of 1.5.  Therefore her basic award is computed as follows:-

	£157.00 x 1.5  =  £235.50

This applicant also made efforts to obtain alternative employment and the tribunal was impressed to see her Job Seeker’s book produced in evidence.  The applicant was without employment from 13 June 2002 to 6 September 2002 being the date in which she set up her own business.  This is a period of twelve weeks and this applicant is entitled to receive compensatory award based on her net weekly pay of £140.00 multiplied by twelve weeks - £1,680.00.  This applicant abandoned any claim for future loss.  

Unlike the previous applicant, this applicant did claim Unemployment Benefit for the whole of her immediate loss period of twelve weeks and the attention of the parties is drawn to the Recoupment Notice which is attached to this decision.  The tribunal also awards the amount of £200.00 in respect of loss of statutory rights.  

Summary of unfair dismissal compensation

Basic award 						=		£    235.50

Compensatory award					=		£  1,680.00

Loss of statutory rights				=		£    200.00

Total compensation for unfair dismissal		=		£2,115.00

This applicant also claimed an entitlement to pay in lieu of notice computed as follows:-

	One week x £140.00 (being the applicant’s net pay)  =  £140.00

Overtime unpaid at the rate of £4.00 net (being £6.00 net in respect of time and a half for overtime), 6 x £6.00  =  £36.00.  The tribunal also awards the sum of £36.00 paid short in respect of her final week’s salary.

(c)	Mary Hopkins

As a result of the provisions of Article 141 of the Employment Rights (Northern Ireland) Order 1996 as a result of this applicant’s age, she is not entitled to claim the remedy of unfair dismissal.  

However bearing in the mind the applicant’s completed years of service of 17 years, the tribunal is awarding her pay in lieu of notice in the maximum amount of twelve weeks.  Due to this applicant’s age, her evidence was that she did not pay tax or NIC and accordingly her net weekly wage was £143.50.  

	£143.50 x 12  =  £1,722.00

(d)	Eleanor McAllister

This applicant had nine completed years of service and was 57 at the date of termination of her employment.  This applicant is entitled to receive a basic award computed as follows:-

	£143.50 x 13.5  =  £1,937.25

This applicant is also entitled to receive a compensatory award for the period from 10 June 2002 to 14 October 2002.  The applicant said she only commenced employment with Mrs Butler, another applicant, on 14 October 2003.  However given the fact that the applicant also stated that she was in receipt of benefit for only eleven weeks, and that she looked actively for work and did not have any success in obtaining any work, the tribunal considers that it is more likely than not that the applicant actually commenced employment with Mrs Butler on 14 October 2002.  Accordingly the tribunal finds that the applicant is entitled to receive a compensatory payment for the period from 10 June 2002 to 13 October 2002, being 17 weeks (17 weeks x £129.00  =  £2,193.00).

The tribunal awards this figure of £200.00 in respect of this applicant’s loss of statutory rights.  

The attention of the parties is drawn to the Recoupment Notice attached to this decision.

Summary of compensation

Basic award 						=		£1,937.25

Compensatory award					=		£2,193.00

Loss of statutory rights				=		£   200.00

Total compensation					=		£4,330.25

This applicant also made a claim for pay in lieu of notice in the amount of nine weeks and this is computed as follows:-

	9 x £129.00  =  £1,161.00

7.	All the applicants made a claim for in and around twenty days of holiday pay.  It was common case between the applicants that they had worked a lying holiday year and were entitled at termination of employment to a full year’s entitlement less the days that they had taken at Easter and May in 2002.

The tribunal had the benefit of an argument from Mr O’Neill based on the case of List Design Group Limited  v  Douglas & Others reported in 2003 of the IRLR.

This case provided that withholding holiday pay under the Working Time Regulations qualified as a deduction from wages within the meaning Employment Rights Act (in this jurisdiction the Employment Rights (Northern Ireland) Order 1996).  

Mr O’Neill went onto argue that this meant that the applicants were entitled to receive their full year’s entitlement as a deduction from wages under Article 45 of the Employment Rights (Northern Ireland) Order 1996.  However, as the tribunal accepted that this was a deduction from wages, the provisions of Article 55(2) of the same Order would also apply and this provides that an industrial tribunal shall not consider a complaint under this Article unless it was presented before the end of a period of three months beginning with the date of payment of the wages from which the deduction was made.  

Mr O’Neill argued that this did not apply as he was arguing that this was a deduction in a series in accordance with Article 55(2), Article 55(3)(a) and the time of the last deduction is the relevant time from which the period of three months commences.  The tribunal found that the applicants were complaining of deductions in respect of holidays which would have fallen to have been taken in July, September and Christmas 2001.  As such, these deductions would have taken place outside the period of three months before the applicants presented their Originating Applications.  Thus these particular cases are distinguished from the authority of List Design Group Limited as in that case the deductions were found to fall within the three month period before the applicants presented their Originating Applications.  Accordingly, the tribunal finds that these claims in respect of untaken holiday pay have not been made in accordance with the three months contemplated by the 1996 Order, and as no argument was advanced in respect of whether or not it would have been reasonably practicable for the applicants to make such a claim, the tribunal finds that these claims are not well-founded and are dismissed.

8.	This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.

Chairman:

Date and place of hearing:		27 October 2003, Belfast

Date decision recorded in register and issued to parties: